Notice of Motion For:: L . .SUANT

Attorney or Party Name, Address, Telephone & FAX Numbers, and California State Bar Number FOR COURT
COURT USE ONLY

Aram Ordubegian (SBN 185142) and Andy Kong (SBN 243933)
ARENT FOX LLP
555 West Fifth Street, 48th Floor
Los Angeles, CA 90013
I Telephone 213-629-7410; Facsimile 213-629-7401
Email: ordubegian.aram@arentfox.com
for Creditor Roche Diagnostics Corporation
UNITED STATES BANKRUPTCY COURT
lin re: CENTRAL DISTRICT OF CALIFORNIA
CHAPTER 11
i
WESTCLIFF MEDICAL LABORATORIES, INC., I
CASE NUMBER. 8:10-bk-16743-TA
BIOLABS, INC., DATE: 12/8/10
I
TIME: 10:00 a.m.
I
L __
Debtor. COURTROOM: 5B
NOTICE OF MOTION FOR:
OF AN ORDER ALLOWING AND DIRECTING PAYMENT OF AN ADMINISTRATIVE EXPENSE
TO 11 U.S.C. 503(b)(9); DECLARATION OF WAYNE MATHIAS IN SUPPORT THEREOF __ ---'
(Specify name of Motion)
1. TO: THE HONORABLE THEODOR C. ALBERT, UNITED STATES BANKRUPTCY JUDGE; AND ALL PARTIES IN INTEREST
2. NOTICE IS HEREBY GIVEN that on the following date and time and in the indicated courtroom, Movant in the above-
captioned matter will move this Court for an Order granting the relief sought as set forth in the Motion and accompanying
supporting documents served and filed herewith. Said Motion is based upon the grounds set forth in the attached Motion
and accompanying documents.
3. Your rights may be affected. You should read these papers carefully and discuss them with your attorney, if you have
one. (If you do not have an attorney, you may wish to consult one.)

I Hearing Date: 12/8/10 Time: 10:00 a.m.
I
I 0 255 East Temple Street, Los Angeles
1:1 21041 Burbank Boulevard, Woodland Hills
Courtroom: 5B Floor: 5th
411 West Fourth Street, Santa Ana
1415 State Street, Santa Barbara
LO ___ _____________________________________________________
4. Deadline for Opposition Papers: This Motion is being heard on regular notice pursuant to Local Bankruptcy Rule 9013-1.
If you wish to oppose this Motion, you must file a written response with the Bankruptcy Court and serve a copy of it upon
the Movant or Movant's attorney at the address set forth above no less than fourteen (14) days prior to the above hearing
date. If you fail to file a written response to this Motion within such time period, the Court may treat such failure as a
waiver of your right to oppose the Motion and may grant the requested relief.
5. Hearing Date Obtained Pursuant to Judge's Self-Calendaring Procedure: The undersigned hereby verifies that the
above hearing date and time were available for this type of Motion according to the Judge's self-calendaring procedures.
Dated: 11/15/10
ARENT FOX LLP
Law Firm Name
By: _____________ I_s_/A __ ________ ___
Name: ANDY S. KONG
Attorney for Movant
This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.
January 2009 F 9013-1.1
I
Case 8:10-bk-16743-TA Doc 296 Filed 11/15/10 Entered 11/15/10 17:04:21 Desc
Main Document Page 1 of 16
MOTION
1 Aram Ordubegian (SBN 185142)
Andy Kong (SBN 243933)
2 ARENT FOX LLP
Gas Company Tower
3 555 West Fifth Street, 48
th
Floor
Los Angeles, CA 90013
4 Telephone 213-629-7410; Facsimile 213-629-7401
Email: ordubegian.aram@arentfox.com
5
David M. Powlen (admitted pro hac vice)
6 BARNES & THORNBURG LLP
1000 N. West Street, Suite 1200
7 Wilmington, DL 19801-1058
Telephone 302-888-4536; Facsimile 302-295-4801
8 Email: david.powlen@btlaw.com
9 Timothy S. McFadden (admitted pro hac vice)
BARNES & THORNBURG LLP
10 1 North Wacker Drive, Suite 4400
Chicago, Illinois 60606
11 Telephone 312-357-1313; Facsimile 312-759-5646
Email: tmcfadden@btlaw.com
12
13
14
15
16
17
18
Attorneys for Creditor Roche Diagnostics Corporation
In re:
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
SANTA ANA DIVISION
Lead Case No. 8:1O-bk-16743-TA
WESTCLIFF MEDICAL
19 LABORATORIES, INC.,
[Jointly Administered with Case
No.8:1O-bk-16746-TA]
20 Debtor.
21
22
23
24
25
26
27
28
BIOLABS, INC.,
[x J Affects both Debtors.
LA/360151.1
Debtor.
Chapter 11
MOTION OF ROCHE DIAGNOSTICS
CORPORATION FOR ENTRY OF AN ORDER
ALLOWING AND DIRECTING PAYMENT
OF AN ADMINISTRATIVE EXPENSE
PURSUANT TO 11 U.S.c. 503(b)(9);
DECLARATION OF WAYNE MATHIAS IN
SUPPORT THEREOF
Hearing
Date:
Time:
Place:
December 8, 2010
10:00 a.m.
Courtroom 5B
411 West Fourth Street
Santa Ana, CA 92701
1 TO: THE HONORABLE THE ODOR C. ALBERT, UNITED STATES
2 BANKRUPTCY JUDGE; AND ALL PARTIES IN INTEREST:
3 Roche Diagnostics Corporation ("RDC"), by counsel, hereby submits its Motion For
4 Entry of an Order Allowing and Directing Payment of an Administrative Expense Pursuant to 11
5 U.S.C. 503(b)(9) (the "Motion"). In support of this Motion, RDC concurrently submits the
6 Declaration of Wayne Mathias, incorporated herein by reference, and respectfully represents as
7 follows:
8 JURISDICTION
9 1. This Court has jurisdiction over this Motion pursuant to 28 u.s.c. 157 and
10 1334. Venue is proper in this District pursuant to 28 U.S.C. 1408 and 1409. This Motion is a
11 core proceeding pursuant to 28 U.S.c. 157(b)(2)(A) and (B).
12 2. The statutory predicate for the relief requested herein are sections 503(b )(9) and
13 507(a)(2) oftitle 11 of the United States Code (the "Bankruptcy Code").
14 BACKGROUND
15 3. On May 19, 2010 (the "Petition Date"), the Debtors filed voluntary petitions for
16 relief under Chapter 11 of Title 11 of the United States Code (the "Bankruptcy Code") with this
17 Court.
18 4. RDC is a party to numerous agreements constituting leases or executory contracts
19 with the Debtors
l
(collectively, the "Agreements"), including for the leasing of equipment (with
20 RDC as owner/lessor and the Debtors as lessee), the servicing of equipment (with RDC as
21 service provider and the Debtors as recipients of such services), and the sale and delivery of
22 various products (with RDC as supplier and the Debtors as purchaser).
23 5. In the twenty (20) days prior to the Petition Date, RDC sold to one or more of the
24 above-referenced debtors ("Debtors"), goods on credit (the "Goods") in the ordinary course of
25
I RDC believes that all or substantially all of its agreements are specifically with the debtor Westcliff Medical
26 Laboratories Inc. References herein to the Debtors are intended to mean the respective contractual interests and
obligations of the Debtors as such appear in relation to RDC.
27
28
LA!3 60151.1
- 2 -
I the Debtors' business. RDC issued invoices (the "Invoices") to the Debtors for the Goods, as
2 summarized
2
in Exhibit A hereto. RDC has not been paid the amounts due on the Invoices and
3 has not otherwise been compensated for the Goods.
4 RELIEF REQUESTED
5 6. By this Motion, RDC respectfully requests that this Court (i) allow in favor of
6 RDC an administrative expense claim in the amount of $226,593.43 for the Goods, which were
7 sold to the Debtors during the twenty (20) days prior to the Petition Date pursuant to section
8 503(b )(9) of the Bankruptcy Code, (ii) authorize and direct the Debtors to pay such
9 administrative claim immediately upon entry of such order, and (iii) grant such other relief as is
10 just and proper.
11 BASIS FOR RELIEF REQUESTED
12 7. Section 503(b )(9) of the Bankruptcy Code provides, in pertinent part, that after
13 notice and a hearing, there shall be an allowed administrative expense claim for:
14 the value of any goods received by the debtor within 20 days before the
15 date of commencement of a case under this title in which the goods have
16 been sold to the debtor in the ordinary course of such debtor's business.
17 11 U.S.C. 503(b)(9); see In re Dana Corp., 367 B.R. 409, 415 (Bankr. S.D.N.Y. 2007).
18 8. Administrative claims under section 503(b )(9) are granted a priority pursuant to
19 section 507(a)(2)of the Bankruptcy Code. 11 U.S.C. 507(a)(2). At the very latest,
20 administrative expenses, including those arising under section 503(b )(9), must be paid in full on
21 the effective date of the plan. See 11 U.S.c. 1129(a)(9); In re Global Home Products, LLC,
22 2006 WL 3791955, at *3 (Bankr. D. Del. Dec. 21, 2006).
23 9. As evidenced by the invoices summarized in Exhibit A, RDC provided goods
24 valued in the aggregate amount of $226,593.43 to the Debtor during the twenty (20) days prior to
25 the Petition Date. Such goods were provided on credit, and the Debtors have not made payment
26
27
28
2 The Invoices are voluminous and, therefore, are not included in an exhibit to this Motion. The Invoices are
summarized in Exhibit A, and will be made available to Debtors upon request to RDC's counsel.
- 3 -
LA/360151.1
1 for the goods. Therefore, RDC is entitled to an administrative expense under section 503(b )(9)
2 of the Bankruptcy Code.
3
10. RDC respectfully reserves the right to amend, and obtain payment on any other
4 claims evidenced in, its previously filed proof of claim.
3
Also, RDC respectfully reserves the
5 rights to seek allowance of and payment on any further claims under 11 U.S.C. 503(b)(9) and
6 any other administrative claims under 11 U.S.C. 503(b)(I).
7 WHEREFORE, RDC respectfully requests that this Court enter an order (i) allowing in
8 favor of RDC an administrative expense claim under section 503(b )(9) of the Bankruptcy Code
9 in the amount of $226,593.43, (ii) authorizing and directing the Debtors to pay such
10 administrative claim immediately upon entry of such order, and (iii) granting such other relief as
11 is just and proper.
12 Dated: November 15,2010
13
14
15
16
17
18
19
20
21
22
23
24
25
ROCHE DIAGNOSTICS CORPORATION
/s/ Andy S. Kong
Aram Ordubegian
Andy Kong
ARENT FOX LLP
-and-
David M. Powlen (admitted pro hac vice)
1000 N. West Street, Suite 1200
Wilmington, DL 19801-1058
Telephone 302-888-4536
Facsimile 302-295-4801
Email: david.powlen@btlaw.com
-and-
Timothy S. McFadden (admitted pro hac vice)
1 North Wacker Drive, Suite 4400
Chicago, Illinois 60606
Telephone 312-357-1313
Facsimile 312-759-5646
Email: tmcfadden@btlaw.com
26
27
3 On September 16, 2010, RDC filed a proof of claim against the Debtors for $889,069.60, identified as Claim No.
167.
28
- 4-
LAl360151.1
1 DECLARATION OF WAYNE MATmAS
2 I, Wayne Mathias, declare that:
3
1. I am an individual over the age of twenty-one (21) and a Recovery Specialist at
4 Roche Diagnostics Corporation ("RDC"). I have served as RDC's Recovery Specialist since
5 1999. If I were called to testify as a witness in this matter, I could and would competently testify
6 to the facts set forth herein based upon my personal knowledge. I am authorized to submit this
7 Declaration on behalf ofRDC. All capitalized words used herein shall have the meaning
8 ascribed to them in the Motion unless otherwise defined.
9
2. As RDC's Recovery Specialist, I have worked extensively with the books and
10 records of RDC and more specifically for the leasing of equipment (with RDC as owner/lessor
11 and the Debtors as lessee), the servicing of equipment (with RDC as service provider and the
12 Debtors as recipients of such services), and the sale and delivery of various products (with RDC
13 as supplier and the Debtors as purchaser). Based on all of the foregoing, I have developed an
14 intimate familiarity with RDC's books and records, which are maintained in the ordinary course
15 of business under my supervision and control as custodian.
16 3. I make this declaration in support ofRDC's Motion For Entry of an Order
17 Allowing and Directing Payment of an Administrative Expense Pursuant to 11 U.S.C.
18 S03(b )(9) (the "Motion"). Unless otherwise stated in this Declaration, I have personal
19 knowledge of the facts set forth herein.
20 4. On May 19, 2010, the Debtors filed voluntary petitions for relief under Chapter
21 11 of Title 11 of the United States Code with this Court.
22 5. RDC is a party to numerous agreements constituting leases or executory contracts
23 with the Debtors (collectively, the "Agreements"), including for the leasing of equipment (with
24 RDC as owner/lessor and the Debtors as lessee). the servicing of equipment (with RDC as
25 service provider and the Debtors as recipients of such services), and the sale and delivery of
.
26 various products (with RDC as supplier and the Debtors as purchaser).
27
28
LAl36015 1.1
-5-
1
6. I am informed and believe that all or substantially all of the Agreements are
2 specifically with the debtor WestcliffMedical Laboratories Inc.
3 7. In the twenty (20) days prior to the Petition Date, RDC sold to one or more of the
4 Debtors, goods on credit (the "Goods") in the ordinary course of the Debtors' business. RDC
5 issued invoices (the "Invoices") to the Debtors for the Goods, as summarized in Exhibit A
6 hereto. The Invoices are volwninous and, therefore. are not included in an exhibit hereto. The
7 Invoices are summarized in Exhibit A, and win be made available to Debtors upon request to
8 RDC's counsel. RDC has not been paid the amounts due on the Invoices and has not otherwise
9 been compensated for the Goods.
10 8. As evidenced by the invoices summarized in Exhibit A, RDC provided goods
11 valued in the aggregate amount of $226,593.43 to the Debtor during the twenty (20) days prior to
12 the Petition Date. Such goods were provided on credit, and the Debtors have not made payment
13 for the goods.
14 I declare under penalty of perjury under the laws of the United States of America that the
15 foregoing is true and correct.
16
17
18
19
20
21
22
23
24
25
26
27
28
LAl360151.l
[signature on following page]
-6-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Executed this I ~ t h day of November 2010, at Indianapolis, Indiana.
-7-
LAl3601S1.1
EXHIBIT n A "
Document #
901284806
901286905
901286907
901289710
901292257
901295059
901302877
901305335
Westcliff Med Labs - 55113524
Invoices 20 days prior to Bankruptcy Date of 5/19/10
Document Date
TOTAL
5/112010
5/3/2010
5/3/2010
5/4/2010
5/5/2010
5/6/2010
5/10/2010
5/11/2010
Amount
83,191.18
119,491.62
1,907.45
4,478.27
2,655.71
2,164.13
412.71
12,292.36
226,593.43
POI Assignment
550016
140800
140795
140838
140856
140879
140911
CLARK CHOW
- 8 -

In re: WESTCLIFF MEDICAL LABORATORIES, INC. and BIOLABS, INC.,

Debtor(s).
CHAPTER 11

CASE NUMBER 8:10-bk-16743-TA

January 2009 F 9013-3.1

NOTE: When using this form to indicate service of a proposed order, DO NOT list any person or entity in Category I.
Proposed orders do not generate an NEF because only orders that have been entered are placed on the CM/ECF docket.

PROOF OF SERVICE OF DOCUMENT

I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is:

Arent Fox LLP, Gas Company Tower, 555 West Fifth Street, 48th Floor, Los Angeles, CA 90013.

A true and correct copy of the foregoing document described NOTICE OF MOTION AND MOTION OF ROCHE
DIAGNOSTICS CORPORATION FOR ENTRY OF AN ORDER ALLOWING AND DIRECTING PAYMENT OF
AN ADMINISTRATIVE EXPENSE PURSUANT TO 11 U.S.C. 503(b)(9); DECLARATION OF WAYNE
MATHIAS IN SUPPORT THEREOF will be served or was served (a) on the judge in chambers in the form and manner
required by LBR 5005-2(d); and (b) in the manner indicated below:

I. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF) Pursuant to controlling General
Order(s) and Local Bankruptcy Rule(s) (LBR), the foregoing document will be served by the court via NEF and hyperlink
to the document. On November 15, 2010 I checked the CM/ECF docket for this bankruptcy case or adversary proceeding
and determined that the following person(s) are on the Electronic Mail Notice List to receive NEF transmission at the email
address(es) indicated below:

Service information continued on attached page

II. SERVED BY U.S. MAIL OR OVERNIGHT MAIL(indicate method for each person or entity served):
On November 15, 2010 I served the following person(s) and/or entity(ies) at the last known address(es) in this bankruptcy
case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States Mail,
first class, postage prepaid, and/or with an overnight mail service addressed as follows. Listing the judge here constitutes
a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed.


III. SERVED BY PERSONAL DELIVERY, FACSIMILE TRANSMISSION OR EMAIL (indicate method for each person or
entity served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on I served the following person(s) and/or entity(ies)
by personal delivery, or (for those who consented in writing to such service method), by facsimile transmission and/or
email as follows. Listing the judge here constitutes a declaration that personal delivery on the judge will be completed no
later than 24 hours after the document is filed.


I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

November 15, 2010 SIMONA FILIP

/s/ Simona Filip
Date Type Name Signature

In re: WESTCLIFF MEDICAL LABORATORIES, INC. and BIOLABS, INC., CHAPTER 11
Debtor(s). CASE NUMBER 8:10-bk-16743-TA
ADDITIONAL SERVICE INFORMATION:
I. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING ("NEF"):
Todd M Arnold on behalf of Debtor BioLabs, Inc.
tma@lnbrb.com
Richard L Barnett on behalf of Creditor Mission Hospital Regional Medical Center dba Mission Hospital
rick@barnettrubin.com, rlbsec@barnettrubin.com
Ron Bender on behalf of Debtor BioLabs, Inc.
rb@lnbrb.com
Ronald K Brown on behalf of Creditor LGSM Laguna Hills, LLC
rkbgwhw@aol.com
Jennifer Witherell Crastz on behalf of Creditor Beckman Coulter, Inc.
jcrastz@hemar-rousso.com
Carol J Fogleman on behalf of Creditor City of Wildomar
mfrost@bwslaw.com
Anthony A Friedman on behalf of Debtor Westcliff Medical Laboratories, Inc.
aaf@lnbrb.com
John-patrick M Fritz on behalf of Debtor Westcliff Medical Laboratories, Inc.
jpf@lnbrb.com
Jeffrey K Garfinkle on behalf of Creditor Committee Creditors Committee
b kgroup@buchalter.com, jgarfinkle@buchalter.com;lgoodwin@buchalter.com
Nancy S Goldenberg on behalf of U.S. Trustee United States Trustee (SA)
nancy.goldenberg@usdoj.gov
D Edward Hays on behalf of Creditor LaserCycle Imaging
eha ys@marshackhays.com
Michael J Heyman on behalf of Interested Party Laboratory Corporation of America
michael.heyman@klgates.com
Mark D Houle on behalf of Creditor Health Net, Inc.
mark.houle@pillsburylaw.com
Rodger M Landau on behalf of Interested Party Courtesy NEF
rlandau@lgbfirm.com, kmoss@lgbfirm.com
January 2009 F 9013-1 .1
Debtor(s). CASE NUMBER B:10-bk-16743-TA
Matthew A Lesnick on behalf of Financial Advisor MTS Health Partners, L.P.
matt@lesnicklaw.com
Michael B Lubic on behalf of Interested Party Laboratory Corporation of America
michael.lubic@klgates.com
Frank F McGinn on behalf of Interested Party Courtesy NEF
ffm@bostonbusinesslaw.com
Elissa Miller on behalf of Interested Party AFCO Acceptance Corporation
emiller@sulmeyerlaw.com, asokolowski@sulmeyerlaw.com
Justin E Rawlins on behalf of Interested Party Courtesy NEF
jrawlins@winston.com, docketla@winston.com
Jacqueline L Rodriguez on behalf of Debtor BioLabs, Inc.
jlr@lnbrb.com
Benjamin Seigel on behalf of Creditor Committee Creditors Committee
bseigel@buchalter.com, IFS _ filing@buchalter.com
David B Shemano on behalf of Creditor Cambridge Healthcare Properties, Inc.
dshemano@pwkllp.com
Philip E Strok on behalf of Interested Party Courtesy NEF
pstrok@wgllp.com
United States Trustee (SA)
ustpregion16.sa.ecf@usdoj.gov
Howard J Weg on behalf of Interested Party Courtesy NEF
hweg@pwkllp.com
Sharon Z Weiss on behalf of Interested Party Specialty Laboratories, Inc.
sharon.weiss@hro.com
Joseph M Welch on behalf of Interested Party Courtesy NEF
jwelch@buchalter.com
January 2009 F 9013-1 .1
II. SERVED BY U.S. MAil:
Honorable Theodor C. Albert
U.S. Bankruptcy Court
Ronald Reagan Federal Building
411 W. Forth Street, Bin outside of Room 5097
Santa Ana, CA 92701-4593
REQUEST FOR SPECIAL NOTICE
Callahan & Blaine
3 Hutton Centre Dr #900
Santa Ana, CA 92707
City and County of San Francisco
Office of the Treasurer/Tax Collector
Legal Section
Attn: Robertg L. Fletcher, Jr., POB 7426
San Francisco, CA 94120-7426
Debt Acquisition Company of America V, LLC
1565 Hotel Circle South
Suite 310
San Diego, CA 92108
Department of Health Care Services
Office of Legal Services
Attn: Steven A. Oldham, Staff Attorney
MS 0010
PO Box 997413
Sacramento, CA 95899-7413
Enterprise Rent-A-Car of Los Angeles, dba Enterprise Fleet Service
17210 South Main Street
Attn: Michael Gerges
Gardena, CA 90248
David W Gee
Garvey Schubert Barer
1191 Second Ave 18th FI
Seattle, WA 98101-2939
January 2009 F 9013-1.1
Kirkland & Ellis LLP
300 N LaSalle St
Chicago, IL 60654
Ernie Zachary Park on behalf of Creditor The Irvine Company LLC
13215 E Penn St #510
Whittier, CA 90602
Riverside Claims
Post Office Box 626
Planetarium Station
New York, NY 10024-0540
Johnny White on behalf of Creditor Google Inc.
Blakeley & Blakeley LLP
2 Park Plaza Ste 400
Irvine, CA 92614-8561
ThiS form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of Califomia.
January 2009 F 9013-1 .1

Notice of Motion For:: L . .SUANT

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Notice of Motion For:: L . .SUANT

Uploaded by

Copyright:

Available Formats

Attorney or Party Name, Address, Telephone & FAX Numbers, and California State Bar Number FOR COURT

COURT USE ONLY

You might also like